SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 691/10
DATE: 2012/09/10

RE: KATHLEEN ELIZABETH MILLIGAN v. GREGORY BRUCE ASPDEN

BEFORE: The Honourable Mr. Justice D.J. Taliano

COUNSEL: J. Almas , for the Applicant

M. Stratton , for the Respondent

C O S T S E N D O R S E M E N T

[ 1 ] This ruling deals with the question of costs following a four day trial that culminated in written reasons for judgment dated February 23, 2012.

[ 2 ] The applicant was successful on virtually every issue that was placed before the court for decision. That was because the respondent’s position on the various issues was unreasonable. Indeed, the litigation was prompted by the respondent unilaterally terminating all spousal and child support when he was fully employed, in spite of strenuous urgings on the part of counsel for both parties (not present counsel) not to do so.

[ 3 ] His unreasonable pre trial attitude continued throughout the trial. For instance, it was not until the fourth day of trial that he abandoned a claim that the applicant share equally the run-up of the mortgage debt against the matrimonial home following separation in spite of the fact that the applicant received none of the benefit of the increased debt. Other instances of the respondent’s untenable positions are detailed in the judgment and need not be repeated.

[ 4 ] What makes the respondent’s opposition to a cost order futile is the fact that the applicant made an offer to settle the issues prior to trial and permitted the respondent to accept any individual paragraph without having to accept all of the terms of her offer. This offer was clearly designed to eliminate issues for trial without necessarily forcing the respondent to accept an all or nothing proposal. The offer was open for acceptance until December 30, 2011 at 5 p.m. Thereafter the offer could still be accepted at any time until 15 minutes into the trial provided that the respondent paid the applicant her costs of $4,500.

[ 5 ] The relevant portions of Rule 18(14) of the Family Law Rules require that: (2) an offer to settle be made at least seven days before the trial; (3) that the offer does not expire and is not withdrawn before the hearing starts; (4) is not accepted; and (5) the party who made the offer obtains an order that is as favourable as or more favourable than the offer.

[ 6 ] The applicant has satisfied all of the requirements of Rule 18 and “unless the court orders otherwise”, is entitled to recover costs to the date of the offer and “full recovery of costs from that date”.

[ 7 ] Counsel for the applicant has indicated that he spent 22.7 hours processing the claims until the date of the offer on December 30, 2011. His hourly rate is $250 which is reasonable as is the time logged in his bill of costs. I therefore allow costs of $3,688 or two-thirds of the full indemnity rate calculated at $162.50 per hour times 22.7 hours.

[ 8 ] After December 20, 2011, counsel’s hours total 55 hours at $250 per hour for a total of $13,750. I find the number of hours logged for this segment to be reasonable as well as the hourly rate. In addition, the amount sought for disbursements of $847.58 is reasonable. Accordingly, the applicant’s proposed costs claim in the approximate sum of $18,000 is reasonable.

[ 9 ] The final question to determine is whether the court should make a different order. I have considered the criteria set out in Rule 24 and find that there are no factors that favour a diminished order with one possible exception.

[ 10 ] It is true that the respondent’s bad judgment has left him with no assets. Although he has substantially more income than the applicant, his capital position is certainly inferior. However, given that the respondent will likely enjoy greater income for the indefinite future and having regard to the object of the costs rule to encourage parties to act reasonably, the already modest costs claim being presented by the applicant should not be reduced except by a modest amount. Particularly is this so having regard to the fact that there are still outstanding issues between the parties that need to be resolved. It is anticipated that this cost award will encourage the respondent to take a more informed approach to the resolution of ongoing family law issues. Certainly, his unreasonable behaviour that required a trial to address cannot be condoned.

[ 11 ] Accordingly, I award the applicant costs in the sum of $15,000 inclusive, payable forthwith.

Taliano J.

DATE: September 10, 2012

COURT FILE NO.: 691/10

DATE: 2012/09/10

SUPERIOR COURT OF JUSTICE - ONTARIO RE: KATHLEEN ELIZABETH MILLIGAN v. GREGORY BRUCE ASPDEN BEFORE: The Honourable Mr. Justice D.J. Taliano COUNSEL: J. Almas, for the Applicant M. Stratton, for the Respondent COSTS ENDORSEMENT Taliano J.

DATE: September 10, 2012